The parties disputed whether a right of way over a road included an implied right for the dominant owner to park on the servient tenement.
Held: The appeal failed. ‘The question is whether the ancillary right is necessary for the comfortable use and enjoyment of the servitude. The use of the words ‘necessary’ and ‘comfortable’ strikes the right balance between the interests of the servient and the dominant proprietors.’ The answer may differ in each case. The Sherriff heard the evidence and reached a conclusion that such an ancillary right arose. The arguments about possible abuse of the right by others than the dominant land owner were irrelevant. Given the history of the matter an interdict was appropriate.
In asking whether a proposed easement would stop any use by the servient owner, it must be allowed that a land owner may create such rights as he chooses over his land. Lord Scott said that he would: ‘reject the test that asks whether the servient owner is left with any reasonable use of his land, and substitute for it a test which asks whether the servient owner retains possession and, subject to the reasonable exercise of the right in question, control of the servient land.’
Lord Scott also doubted whether the grant of a right to use a neighbour’s swimming pool could ever qualify as a servitude (the Scottish equivalent of an easement) as the swimming pool owner would be under no obligation to keep the pool full of water and the grantee would be in no position to fill it if the grantor chose not to do so. The right to use the pool would, he opined, be no more than an in personam contractual right at best.
Lord Rodger said: ‘the express grant of a servitude of access in the pursuers’ title could carry with it an implied right to park on the servient land if this was essential to make the servitude of access effective or to carry out the purpose for which the servitude of access was granted or was a means of obtaining an effective right of access. On that basis, for example, if pedestrian access was to be obtained over many miles of servient land, a right to stop and rest for some time on the servient land might readily be implied. But I see no basis for implying into the grant of a servitude of access, which is effective, further rights simply on the basis that they would be ‘for the convenient and comfortable use of the property.”
Lord Hope of Craighead, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Mance, Lord Neuberger of Abbotsbury
[2007] UKHL 42, [2007] 1 WLR 2620
Bailii
Scotland
Citing:
Cited – Baird v Ross 1836
A dominant proprietor of land was not entitled to load or unload or turn carts unless he could do so on the cart way. . .
Appeal from – Moncrieff and Another v Jamieson and others IHCS 4-Feb-2005
. .
Cited – Harvey v Lindsay 1853
A new servitudes over land may arise as alterations take place in the progress of society. . .
Cited – Murrayfield Ice Rink Ltd v Scottish Rugby Union Trustees 1973
The court referred to a clause in the feu charter which described a right of use of an area of ground as a car park as a servitude right as ‘a mere servitude right.’ . .
Cited – Nationwide Building Society v Walter D Allan Ltd ScS 4-Aug-2004
Lady Smith said that she could not conclude that Scots law recognises, in principle, a servitude right of parking independent of any right of access. . .
Cited – Kennedy v MacDonald 14-Nov-1988
Activities which are reasonably incidental to the enjoyment of a right of access over land may be incorporated in the right. . .
Cited – Ewart v Cochrane 1861
The parties disputed whether a servitude right to drain water by means of a drain from a tanyard into a garden could be implied when the tanyard and the garden came into separate ownership.
Held: Lord Campbell LC said: ‘My Lords, I consider . .
Cited – Ferguson v Tennant HL 1978
Pasturage is, in itself, a well-recognised servitude. Lord Grieve said that the number of cattle that may be put on the lands of the servient tenement must not exceed that which is ‘proper to the dominant’ – that, is, that the number that the . .
Cited – Jones v Pritchard ChD 6-Feb-1908
The grant of an easement ordinarily carries with it the grant of such ancillary rights as are reasonably necessary to its exercise or enjoyment. However the grant of a right of way over a driveway cannot place on the servient owner the obligation to . .
Cited – McLaren v City of Glasgow Union Railway Co 1878
The court considered the implication by necessity of an implied right of access for land on severance which would otherwise be landlocked. . .
Cited – Cronin v Sutherland 1899
The parties disputed whether a servitude right of passage which had been limited to the use of the road by carts drawn by horses and laden with fuel or manure could be used by the owners of the dominant tenement as a means of egress from their . .
Cited – Pwllbach Colliery Co v Woodman HL 1915
Whether an easement may be created by implication depends on the circumstances under which it is said to have been made. The law implies a grant of such easements as may be necessary to give effect to the common intention of the parties to a grant . .
Cited – Dyce v Lady James Hay HL 1852
A claim was made for a prescriptive right for all the Queen’s subjects ‘to go at all times upon the . . appellant’s property . . for the purpose of recreation’.
Held: Leonards LC said that the right claimed was one that ‘cannot be maintained’ . .
Cited – Reilly v Booth 1890
The express grant of a right over land which would place the dominant owner in such occupation of the servient land as to bar the servient owner from possession or control of the land may not constitute the grant of an easement but may be construed . .
Cited – Hogg v Campbell 2-Apr-1993
The proposition that the dominant proprietors are the only persons interested in an easement cannot be taken too strictly. The right extends to the proprietors’ guests, visitors, employees and others who come there for the purposes to which the land . .
Cited – Pettey v Parsons CA 1914
Mr Parsons (the defendant) owned a parcel of land on the junction of two roads in Bournemouth, called Charminster Road and Alma Road. In the middle of the parcel there was a footpath which ran from Charminster Road westwards to a private road which . .
Cited – A G of Southern Nigeria v John Holt and Company (Liverpool) Limited PC 9-Feb-2015
(Southern Nigeria) The right to use servient land for the purpose of storage was claimed. It was argued that such a right could not exist as an easement.
Held: Lord Shaw of Dunfermline said: ‘there is nothing in the purposes for which the . .
Cited – Celsteel Ltd v Alton House Holdings Ltd ChD 1985
An equitable easement (a right of way), which was not protected by any entry on the register, was a right openly exercised and enjoyed as appurtenant, in this case to a garage, and it adversely affected registered land as an overriding interest. The . .
Cited – Saint v Jenner CA 1973
The dominant owner had been exercising his vehicular right of way over a domestic drive by driving at excessive speeds. The servient owner installed speed bumps. The dominant onwer alleged interference with the right of way.
Held: This . .
Cited – Wright v Macadam KBD 1949
The court considered the exceptions to the rule that a right in fact enjoyed with property will pass on a conveyance of the property by virtue of the grant to be read into the conveyance by virtue of section 62. One exception was if the right was . .
Cited – Copeland v Greenhalf ChD 1952
If a right claimed by way of an easement would effectively deprive the servient owner of any reasonable user of the area of land over which it is exercisable, than that right is not capable of being an easement. The rights asserted here were both . .
Cited – London and Blenheim Estates Ltd v Ladbroke Retail Parks Ltd ChD 29-Jul-1992
A right to park was claimed as an easement.
Held: The question whether the right to park that had been claimed was consistent with the nature of an easement was one of degree: ‘A small coal shed in a large property is one thing. The exclusive . .
Cited – Batchelor v Marlow and Another CA 12-Jul-2001
The applicant claimed parking rights as an easement acquired by prescription. At first instance the rights were recognised as an easement. The rights included parking during daylight hours during weekdays. The land-owner appealed on the ground that . .
Cited – Chalmers Property Investment Co Ltd v Robson HL 20-Jun-1967
A cottage on Mull had no public water supply. The owner had a right to draw water for domestic purposes from a ‘spring or well’ on neighbouring land, but without any guarantee as to its sufficiency, purity or suitability; ‘and for the above purpose . .
Cited – Sutherland v Thomson 1876
Once a servitude right and its scope are established, it ‘must be rendered as little burdensome to the servient tenement as is consistent with its fair exercise.’ . .
Cited – Crown Estate Commissioners v Fairlie Yacht Slip Ltd 1976
The defenders had laid down moorings on the seabed in Fairlie Bay. They argued that the right to lay moorings was a necessary incident of the public right of navigation. The pursuers maintained, however, that the right to anchor was restricted to . .
Cited – Grigsby v Melville and Another ChD 1972
A purchaser of a house above a cellar sought an injunction to support his assertion that a cellar which was served by an access only from the defendant seller’s retained property had been included in the conveyance of ‘all that dwellinghouse’
Cited – Hill v Maclaren 1879
A servitude right must be exercised ‘so as to impose the least possible burden on the servient tenement, consistently with the fair enjoyment of this right by the dominant proprietor.’ . .
Cited – Wheeldon v Burrows CA 17-Jun-1879
Quasi-Easements granted on sale of part of Estate
S owned a workshop and an adjoining plot of land. The workshop had three windows looking out over the plot. The property was sold in separate lots at auction. The land was sold with no express reservation of any easements, and then similarly the . .
Cited by:
Cited – Waterman and Another v Boyle and Another CA 27-Feb-2009
Property had been sold with a right reserved to park two vehicles on retained land. The parties now disputed whether the right included rights for additional visitors’ vehicles to use the necessary right of way and parking spaces additional to the . .
Cited – Polo Woods Foundation v Shelton-Agar and Another ChD 17-Jun-2009
The court considered whether the claimant had established a profit a prendre against the defendant neighbour’s land in the form of a right of pasturage, acquired either by lost modern grant or by prescription.
Held: The appeal succeeded, but . .
Cited – Regency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and Another ChD 7-Dec-2015
Claim by time share owners for easements over neighbouring land. The easements were for various sporting rights and facilities.
Held: The Claimants were entitled to appropriate declaratory relief confirming that they have the rights they claim . .
Cited – Regency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and Others SC 14-Nov-2018
A substantial historic estate had been divided. A development of one property was by way of leasehold timeshare properties enjoying rights over the surrounding large grounds with sporting facilities. A second development was created but wit freehold . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.259906 br>